Confessions (Chapter 17 of Introducing Evidence at Trial)
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Chapter 17: Confessions
Janis L. Blough, Law Office of Janis L. Blough
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Michigan Rules of Evidence
MRE 104  Preliminary Questions
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(c) Hearing of jury. Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury.…

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MRE 613  Prior Statements of Witnesses
(a) Examining witness concerning prior statement. In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request it shall be shown or disclosed to opposing counsel and the witness.

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MRE 801  Hearsay; Definitions

The following definitions apply under this article:

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(d) Statements which are not hearsay. A statement is not hearsay if—

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(2) Admission by party-opponent. The statement is offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity, except statements made in connection with a guilty plea to a misdemeanor motor vehicle violation or an admission of responsibility for a civil infraction under laws pertaining to motor vehicles, or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy on independent proof of the conspiracy.

I.   Explanation

§17.1   Confessions can be the most devastating evidence admitted against a criminal defendant. The voluntariness of the confession is crucial to its admissibility. Although the body of law concerning Miranda rights, waiver of constitutional rights, and so on is outside the scope of this book, the use of confessions in general is discussed here.

The admissibility of a confession is determined in a pretrial motion to suppress called a Walker hearing after People v Walker, 374 Mich 331, 132 NW2d 87 (1965). MRE 104 states that such a hearing must be held outside the hearing of the jury. During a Walker hearing, the judge must determine the voluntariness of the confession; if found voluntary, the jury hears the confession and determines its weight and credibility. To make that determination, the jury should be allowed to hear all the facts and circumstances surrounding the confession. People v Anglin, 111 Mich App 268, 314 NW2d 581 (1981).

The corpus delicti of a crime may not be proven by an extrajudicial confession alone. In other words, there must be evidence of all the essential elements of the crime (except identity of the perpetrator), exclusive of the confession itself. People v McMahan, 451 Mich 543, 548 NW2d 199 (1996); People v Burns, 250 Mich App 436, 647 NW2d 515 (2002). For example, the corpus delicti of first-degree premeditated murder may be established by a showing that a death occurred and that it resulted from a criminal agency. People v Hughey, 186 Mich App 585, 464 NW2d 914 (1990). It is not necessary for the prosecutor to provide independent proof of each and every element of the particular grade and kind of common-law or statutory criminal homicide charged before allowing admission of the defendant’s confession. Such an understanding of the corpus delicti rule would lose sight of the historic reason for the rule: the avoidance of conviction for a homicide that did not occur. Id. The corpus delicti rule applies only to admissions that are confessions of guilt and not to admissions of fact that do not amount to admissions of guilt. People v Rockwell, 188 Mich App 405, 470 NW2d 673 (1991).

A voluntary confession by a criminal defendant is admissible as extrinsic evidence of guilt under MRE 801(d)(2). See chapter 4, Admissions. Whether a confession is voluntary is a question for the court and not the jury, and the burden is on the prosecutor to prove voluntariness by a preponderance of the evidence. See People v Daoud, 462 Mich 621, 614 NW2d 152 (2000). In determining voluntariness, all the circumstances surrounding the statement must be considered, including the length and conditions of the detention; the physical and mental state of the defendant; the age, mentality, and prior criminal experience of the defendant; the nature of any inducement offered; the conduct of the police; and the adequacy and frequency of the advice of rights. People v Sexton, 461 Mich 746, 609 NW2d 822 (2000); Walker.

On a related matter, see chapter 61, Statement Against Interest, for a discussion of the admissibility of a nontestifying codefendant’s confession.

II.   Foundation Requirements

§17.2   If the confession is offered as extrinsic evidence of guilt, the following must be shown:

  1. The defendant made statements to the witness.
  2. The statement admitted guilt of the crime charged or admitted having committed the acts which constitute the crime.
  3. The statement was voluntary. (For example, if the statement was made to law enforcement officers while in custody, the defendant was Mirandized and freely and voluntarily waived his or her rights.)
  4. There is corroborating evidence of the crime.

III.   Sample Examination of Witness

§17.3  

Sample 1

The defendant in the following example has been properly read his Miranda rights and has waived them.

Attorney:Detective Miller, did you have occasion to speak to the defendant shortly after this property was recovered at the pawn shop?
Witness:Yes.
Attorney:When and where did that conversation occur?
Witness:I spoke to Mr. Jones at the Lansing Police Department in an interview room on the fourth floor at about 3:00 p.m. on June 6, 2006.
Attorney:Before asking him any questions, did you advise him of anything?
Witness:Yes. I read him his Miranda rights from a standard departmental form—that’s People’s Exhibit 2. He followed along on another copy of the same form, initialing each as I read it to him, and signing the form at the bottom.
Attorney:Specifically, did you advise Mr. Jones of his right to remain silent, to have an attorney present—an appointed attorney if he could not afford to hire one—and of all the other rights listed on the top half of this form?
Witness:Yes.
Attorney:And did you also review the bottom half of this form—the waiver portion—with him?
Witness:Yes.
Attorney:Did you ask him if he wanted an attorney?
Witness:Yes. He said he didn’t need one.
Attorney:Did you ask him if he was willing to answer your questions?
Witness:Yes. He said he might as well since we had caught him red-handed.
Attorney:And then he signed the form?
Witness:We both signed and dated it.
Attorney:Was anyone else present when you had this conversation?
Witness:No.
Attorney:Did you make any threat or use any form of coercion or force to get him to talk to you?
Witness:No.
Attorney:Did you make him any promises or try to trick or deceive him in any way to get him to answer your questions?
Witness:No.
Attorney:Did you have any reason to believe that Mr. Jones had been deprived of medication, sleep, or food before he made the statement?
Witness:No, he was arrested less than an hour earlier. I offered him something to eat or drink and a cigarette before we sat down, but he didn’t want anything. He seemed alert and in full possession of his mental faculties as far as I could tell.
Attorney:Did he appear to be intoxicated or under the influence of drugs of any kind during your contact with him?
Witness:No.
Attorney:After you advised him of his rights according to People’s Exhibit 2, did he agree to waive those rights and give you a statement?
Witness:Yes.
Attorney:Did you subsequently have that statement transcribed?
Witness:Yes.
Attorney:I now show you a transcript marked People’s Exhibit 3. Do you recognize it?
Witness:Yes. Exhibit 3 is the transcript of Mr. Jones’s statement.
Attorney:Have you reviewed Exhibit 3 for accuracy?
Witness:Yes. It appears to be a verbatim record of my questions and his answers exactly as they were stated at the time.
Attorney:Your Honor, the People offer People’s Exhibits 2 and 3 into evidence and ask that they be presented to the jurors for their review and consideration.

Sample 2

In the following example, the testifying defendant was properly Mirandized. The statement was voluntary.

Attorney:Mr. Jones, if I understand you correctly, you are telling this jury today that your friend, Tommie Luke, gave you the camera marked People’s Exhibit 1 to replace your camera which he broke a week earlier, that you didn’t know it was stolen, and that you pawned the camera immediately because you needed the money to buy food for your spouse and two-week-old baby. Is that accurate?
Witness:Yes.
Attorney:Isn’t it true, Mr. Jones, that within an hour after your arrest, you spoke to Detective Miller of the Lansing Police Department?
Witness:Yes.
Attorney:Let me show you the Miranda rights form marked People’s Exhibit 2. Is this your signature on the form?
Witness:Yes.
Attorney:Did you agree to talk to Detective Miller because he tricked you, or threatened you, or forced you in some way?
Witness:No. He didn’t do any of those things.
Attorney:Were you drunk or under the influence of drugs at the time you talked to Detective Miller?
Witness:No, but I did have three beers and a pint of Schnapps the night before.
Attorney:Were you still feeling the effects of that alcohol?
Witness:No. That much hardly even phases me.
Attorney:Did Detective Miller promise to get you off—or anything else—if you told him the truth?
Witness:No.
Attorney:Did he say or do anything else to get you to talk to him?
Witness:No. We just went over the rights form, I signed it, and then we talked.
Attorney:Now, let me show you People’s Exhibit 3. Isn’t that a transcript of the statement you gave to Detective Miller after you signed the Miranda rights form, People’s Exhibit 2?
Witness:Yes.
Attorney:Is it accurate?
Witness:Yes, I guess so.
Attorney:Well, I don’t want you to guess; read it over. Is there anything that isn’t exactly as you remember it?
Witness:No, everything is the same.
Attorney:Okay, then, referring to page 7, line 13—do you see that?
Witness:Yes.
Attorney:Didn’t you tell Detective Miller that you knew that the camera was stolen when Tommie Luke gave it to you?
Witness:Yes.
Attorney:And didn’t you also tell Detective Miller that you had pawned stolen goods for Tommie Luke before—that you had an arrangement to split the proceeds with him?
Witness:Yes.
Attorney:And when you told these things to Detective Miller, was he hurting you or threatening you in any way?
Witness:No.
Attorney:And he hadn’t made any promises to you or tricked you in any way?
Witness:No.
Attorney:So you told him that you knew the camera was stolen of your own free will without any tricks or promises or force, right?
Witness:Well, I was afraid of going to jail, and I figured that if I came clean, I’d get a break.
Attorney:Did Detective Miller ever at any time during your conversation promise you “a break” or that he’d try to make things easier on you or talk to the prosecutor—or anything like that?
Witness:No, I just figured that it would look good if I talked to him.

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